Commonwealth v. Perkins

658 N.E.2d 975, 39 Mass. App. Ct. 577, 1995 Mass. App. LEXIS 863
CourtMassachusetts Appeals Court
DecidedDecember 29, 1995
DocketNo. 94-P-845
StatusPublished
Cited by15 cases

This text of 658 N.E.2d 975 (Commonwealth v. Perkins) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Perkins, 658 N.E.2d 975, 39 Mass. App. Ct. 577, 1995 Mass. App. LEXIS 863 (Mass. Ct. App. 1995).

Opinion

Porada, J.

The defendant was convicted by a jury in the Superior Court of three acts of forcible rape of a child, three [578]*578acts of indecent assault and battery on a child, and one act of threat to kill. On appeal, he claims reversible error in the judge’s denial of his requested instructions concerning the credibility of a child’s testimony, in the prosecution’s impeachment of a defense expert, and in the Commonwealth’s use of expert testimony, which he argues assessed the credibility of the children’s claims of sexual abuse. We reverse.

We summarize the evidence. In the summer of 1991, the three complaining witnesses — Heather, Tom and Anthony, ranging in age from six to seven years — were all neighborhood playmates of the defendant’s four year old daughter. During that summer, the mothers of Tom and Heather noticed that their children were experiencing behavioral problems which the children had not previously exhibited. Tom and Heather also complained of genital irritation and, in response to questioning by their mothers, identified their fellow playmate, Anthony, as the person responsible for the genital touching. Their parents reported this information to the police, who questioned the children. The children were then examined at Children’s Hospital, where they were also questioned by hospital personnel about the touchings. The children again affirmed that the perpetrator of the abuse was their playmate Anthony and denied any adult involvement. Several weeks later when the defendant and his family moved from the neighborhood, Tom told his mother that the defendant and his wife had been doing bad things to him. Tom, Heather and Anthony underwent further questioning by their parents and the police and in response stated that the defendant and his wife had committed sexual acts upon them.

All three children testified at trial as to the acts performed upon them by the defendant. Tom stated that five acts of anal intercourse were performed in the defendant’s front yard during the day and that the defendant’s wife and two other adults living in the defendant’s house had also performed sexual acts upon him. Heather testified that the defendant had placed a stick in her rectum and fondled her. Anthony said that the defendant had committed anal inter[579]*579course upon him in the defendant’s back yard and claimed that the defendant told him he would kill him if he told anyone. Anthony also admitted that he had engaged in sexual acts with Tom and Heather.

The children’s mothers and a Quincy police officer testified as fresh complaint witnesses for the Commonwealth and reaffirmed the respective complaints of sexual abuse made by the children. In addition, the Commonwealth presented the testimony of two experts, Dr. Renee Brant, a child psychiatrist, and Dr. Jan Paradise, a pediatrician. Neither doctor had treated the children in this case. Dr. Brant began her testimony by outlining the behavioral characteristics of sexually abused children and then responded to a series of hypothetical questions based on the complainants’ behavior in which she opined that delay in disclosure, incremental disclosure, a willingness to return to the scene of alleged abuse and recurring nightmares were not inconsistent with sexual abuse. She also opined that it was possible for sexual abuse to take place in a semipublic or public area and that it was not inconsistent with sexual abuse that different victims might report different means of abuse used by the same perpetrator. Dr. Paradise testified that she had examined each child’s hospital records and opined that the lack of a finding of physical injury to the genital area or anal openings of each child was not inconsistent with their complaints of sexual abuse.

The defendant denied that he had ever engaged in any form of sexual contact with the children. His testimony was followed by the defense’s expert witness, Dr. Underwager, a clinical psychologist, who testified that children were more suggestible than adults and that repeated and suggestive questioning of children by adults could result in responses from the children which were not necessarily true but rather reflected the perceived expectations of the adult authority figure asking the questions.

We now address the defendant’s claims of error.

1. Instructions on child’s credibility. The defendant argues that the judge should have given his requested instruction on [580]*580the assessment of a child’s credibility. In particular, he argues that the judge should have informed the jury that children are more suggestible than adults and that the jury could consider whether questions which suggest the answers may or may not have affected the testimony or memory of the child witnesses in this case.

A trial judge retains discretion to determine whether a special instruction on the assessment of the credibility of a child witness is required, and, if so, the content of that instruction. Commonwealth v. Avery, 14 Mass. App. Ct. 137, 141-143 (1982). Here, the judge elected to give a special instruction on the assessment of the credibility of a child witness.1 Her refusal to include the specific language requested by the defendant did not amount to an abuse of discretion given the state of the evidence in this case.

Whether the complaints of the children against the defendant were spontaneous revelations delivered in bits and pieces over a period of time or were the product of repeated and leading questions posed to them by successive adults was a factual issue to be determined by the jury. The Commonwealth’s and defendant’s experts gave conflicting testimony relating to this issue. Dr. Brant testified that whether a leading question from an adult authority figure could affect a child’s response would depend on a number of specific variables. She opined that it would be highly unusual for a child to respond affirmatively to a leading question based on whether someone had placed an object in his or her anal [581]*581opening because that experience would be very foreign to him or her. Dr. Underwager, on the other hand, opined that children are more suggestible than adults and that the use of leading questions would affect their responses and result in an increasing amount of error. Accordingly, the judge properly refused to give an instruction that may have created an imbalance and been viewed as the judge’s belief or disbelief in a given witness. See Commonwealth v. A Juvenile, 21 Mass. App. Ct. 121, 125 (1985).

2. Impeachment of defendant’s expert. The defendant claims that his expert was impermissibly impeached by statements made by the expert in a magazine article published in Paidika, an Amsterdam pedophilia journal, in which he appeared to endorse pedophilia as an acceptable and reasonable lifestyle. The defendant argues that the material was irrelevant and highly prejudicial, and that defense counsel was ineffective in failing to object to the evidence or to move for a mistrial. The defendant also argues that the judge erred in failing to intervene and truncate the cross-examination sua sponte.

We first address whether the prosecution’s use of the defendant’s expert’s statements in the Paidika article was an improper form of impeachment. Cross-examination of a witness to demonstrate his bias or interest is a matter of right. Commonwealth v. Aguiar, 400 Mass. 508, 513 (1987). An expert witness is not immune from such examination. Commonwealth v. Amaral, 389 Mass.

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Bluebook (online)
658 N.E.2d 975, 39 Mass. App. Ct. 577, 1995 Mass. App. LEXIS 863, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-perkins-massappct-1995.